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Calling Out Meaningless Expert Disclosures in Medical Malpractice Cases
The defendant doctor’s style of disclosure is almost always generic in nature and could be used in virtually any case of medical malpractice (i.e. all care provided by Dr. “X” was within the appropriate standard of care and was not a factor in the outcome). No meaningful expert disclosures are made revealing the grounds and reasons for the conclusions reached, in other words, the “why” for the expert opinions.
Indiana Trial Rule 26(E)(1) explicitly requires a party to seasonably supplement their responses (regardless of any request to do so) concerning the opinions, conclusions and findings of any expert witness. This duty is absolute and is not predicated on either a Court order or repetitive discovery requests. Lucas v. Dorsey, Corp., 609 N.E.2d 1192 (Ind. App. 1993). A party is entitled to know the subject matter of the expert’s testimony, the substance of the facts to which the expert(s) will testify, their opinions, and a summary of the grounds for each opinion. In Ferrara v. Balistreri and DiMaio, Inc. (1985), D. Mass., 105 F.R.D. 147, a Defendant requested the Plaintiff state for each expert the name, address, subject matter of their testimony, substance of facts to which the experts would testify, his opinions, and a summary of the grounds for each opinion. In response, the Plaintiff noted for several of the expert witnesses that he had not yet obtained a report setting forth the facts and opinions of the expert but would provide a copy of the same upon receipt. The Trial Court decided that such a response was inadequate under the Federal Rules of Civil Procedure and stated that:
The duty to supplement is a duty to supplement seasonably (original emphasis). Counsel must not postpone supplementation indefinitely by delaying the retaining of experts and expecting that when he will be able to supplement at the last possible moment before trial is to start. Similarly, counsel may not postpone supplementation by not obtaining from the experts which had been retained the information which is to be supplied in answer to expert interrogatories. In the instance case, counsel for the Plaintiffs did both.
Id. at 150.
The Trial Court specifically ruled it was improper to answer this interrogatory concerning experts on the basis that the witnesses’ opinions would be disclosed when counsel for the Plaintiff “obtains” a report. Id. at 150. The Court determined the Plaintiff’s counsel was under an affirmative obligation to procure such information so that he could file full and complete answers to the expert interrogatories, and was not entitled to delay in doing so. Id. at 150. The Court specifically rejected the Plaintiff’s position that he was under no duty to supplement if the experts had not given him the information. Id. at 150-151. As a result of the Plaintiff’s failure to provide such information, the Court excluded the testimony of certain expert witnesses at trial. Id.
This Rule has also been applied even to rebuttal experts. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993).
No meaningful expert disclosures have ever been in the present case revealing the grounds and reasons for the defense expert’s opinions concerning whether the defendant doctor has breached the standard of care.
A party cannot withhold expert disclosures even if the expert is being presented by way of rebuttal. McCullough v. Archbold Ladder Co, supra. Full disclosure of the “substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion” must be made. Such is required in order for a Plaintiff patient to fairly address a defense doctor’s testimony and determine the areas of questioning required.
Allowing generic disclosures permits the defense to wait until trial and hide in the weeds. This not fair and violates the obligation to provide meaningful disclosures in advance of trial.
I recommend calling the defense out with a motion to compel or seek a protective order when the defense expert disclosures simply state the doctor’s treatment provided met the standard of care.
Read the rest of this entryReadying Your Experts for Traps and Tough Questions
Depositions are dangerous time for your expert. Dangerous traps lies just around the corner. You cannot relax. Here are some thoughts on this important topic.
1. Tendencies of your expert: If you can obtain and read past depositions of your
expert to see not only what type of questions are asked but how he reacts. Does he ramble or
argue? Does he fail to listen to the question or dodge it? Is he argumentative or polite and
professional? You may want to run through some questions, especially problems so your expert
is ready to address them. If the expert is new to the practice, I would video tape the questioning
so the expert can see how he reacts objectively evaluate his performance.
2. Do not hide bad evidence from your expert, deal with it. If you hide bad
evidence from your expert, you will expose your expert to potential embarrassment. He may
even be force to abandon your side of the case because he was not prepared for what was coming
and unwittingly made imprudent concessions earlier in the deposition.
3. What does the expert consider authoritative as a learned treatise? This will
be asked. How will he answer the question? If at all possible, avoid doing the deposition in the expert’s office. It will only provide bookshelves full of ideas for authoritative materials to ask
and cross examine your expert about at trial
4. Screen your expert. Make sure you have already screened your expert’s curriculum vita in
advance for any bluster or bull not supported by the facts. Hopefully, this was done before you ever hired your expert.
5. Obtain Historical Medical Records. The prior medical history of a Plaintiff can
seriously undermine a case’s value and the client’s credibility. It is important to obtain all significant prior medical history from a client. If you don’t, the defense attorney will. Without a full medical history, a client is prone to make misstatements and create fertile ground for purposes of impeachment at the time of trial. Likewise, expert witnesses will be unable to address and deal with any potential weaknesses you might have as a result of any pre-existing medical condition or prior injury. While it is tempting to limit your pretrial production of records to those postdating the injury, it is better to do the investigation yourself ahead of time.
6. Prepare a Medical Chronology – A detailed medical chronology prepared ahead
of their deposition, will give you a means to identify and refresh the expert’s memory regarding past illnesses and injuries, and avoid making misstatements at the time of the deposition, or worse, at the time of trial. In addition, by reviewing the past medical chronology with your expert, you can address responses to the resolution of prior symptoms and/or problems.
7. Prior Lawsuits and Claims – It is important to promptly identify any prior
litigation your expert may have been involved in as either a litigant or as a witness. The prior proceedings can create a ready resource of impeachment through the use of pleadings, discovery responses and depositions. Failure to identify such easily verifiable information can also make it appear as if your expert is a liar. The prior litigation also provides background information on your expert that could lead to surprises.
8. Compound Questions – Compound questions are questions, which incorporate two questions in one. They are very deceptive and dangerous because a yes or no answer can be interpreted as an affirmative response to the underlying predicate. For example, “Do you beat your wife only on Tuesdays and Thursdays?” is actually two questions in one. The first question is, “Do you beat your wife?” and if yes, is it only on Tuesdays and Thursdays? Make sure your expert can identify an undisclosed predicate to a question which makes it compound in case you fail to object.
9. Summary Questions – Another classic approach to the compound question is to
summarize an expert’s prior testimony, and then ask at the tail end a yes or no question. Experts often focus only on the yes or no question, and forget that by answering the question without objection or clarification they are affirming the entire scenario outlined in the question. While you, as an attorney, should object to such questions, it is important to educate the expert on these problems as well, in case you fall asleep at the switch.
10. Box Questions – Questions in Absolute Terms – Questions cast in absolute
terms can also be a problem. Opposing counsel wants to limit your expert’s basis for his opinions and show that he overlooked or ignored some important facts. If he is attempting to exhaust your
expert’s knowledge of the facts on a topic, your expert should indicate “that is all I can recall at
this time.” This leaves an opening to refresh your expert’s memory and supplement or correct the answer through the errata sheet. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your expert in absolute terms. There is nothing wrong with being absolutely sure, you just want to make sure that that is, in fact, the case. If there are exceptions, then the expert needs to avoid answering such questions in the affirmative. On the other hand, defense attorneys will use such absolute terms as a means of unnerving an expert and backing them off of their testimony. The point is, make sure if you answer in absolute terms, that you’re absolutely correct.
11. Milk-Toast Answers – The flip side of this is to water down answers with
qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when you actually know the facts. Make sure your expert avoids using such terminology. It is better to indicate that you don’t know or recall than to guess or speculate. Once again, the primary rule is to answer truthfully and accurately.
12. Do not exaggerate – Don’t take a good case, try to make it a great case, and turn
it into a bad case. Do not be an advocate. Be an expert.
13. Remember you are a professional. Don’t respond in kind to impolite or rude
comments by opposing counsel. The only thing a witness has absolute control over is their behavior and demeanor. By emphasizing this point with your expert, you can both empower and relax them. No matter how rude or aggressive the other attorney is, it’s important for the expert to remain calm and composed. By doing this, the deposition will typically be shorter. When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same. An expert can tactically overcome this by simply remaining calm. Likewise, the expert needs to be cautioned to avoid any sarcasm or insincere solicitous comments.
14. Identify and explain what items which are privileged – Another classic
question to unnerve a witness t that attorneys will often use is, “Have you talked too anybody about this case?” Sometimes, a witness will think that they’ve done something wrong by discussing their testimony in advance. The expert should be put at ease that there is nothing wrong with preparing for their deposition or meeting with you in advance. In fact, most jurors expect attorneys to meet with their witnesses, in order to properly prepare for trial or a deposition. Discussions with counsel are privileged as work product because they are communication with counsel. See Fed. R. Civ. P. 26(b)(4)(C). If the question is posed by opposing counsel and you fall asleep at the switch, you want to make sure that your expert seeks a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If your expert has discussed the case with other persons, you want to identify this well in advance of the deposition. Some experts, especially teaching experts, will discuss pending cases during their lectures. I can recall one case where this occurred and the expert was impeached at trial with tape recordings of his lecture with devastating effect. Loose lips sink both ships and cases.
15. Review all evidentiary foundations – You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.
16. Standard of proof or level of confidence required – this distinction has
somewhat dissipated. However, a number of judges are still requiring use of the magic words.
Typically at the beginning it make sense to asked that you expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.
17. Reliance on materials outside of the court record. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘if in reaching his opinions and conclusions in this case, did he use only materials reasonably relied upon by persons in his field?
18. The Subpoena Duces Tecum Trap – Make sure any subpoena is dealt with well
in advance of the deposition. You should personally review with your expert all items sought
and insure nothing is “lost” or destroyed which is in existence at the time the subpoena is issued.
A privilege log should be prepared for any items withheld and a motion for protective order
sought if agreement cannot be reached on how to handle the subpoena. Blanket claims of privilege are not favored. The party seeking to avoid discovery has the burden of establishing the
essential elements of the privilege being invoked. United States v. Lawless, 709 F.2d 485, 487(7th Cir.1983). The claim of privilege must be made and sustained on a question-by-question
or document-by-document basis. Id., citing United States v. First State Bank, 691 F.2d 332, 335(7th Cir.1982); Matter of Walsh, 623 F.2d 489, 493 (7th Cir.1980), cert. denied, 449 U.S.
994, 101 S.Ct. 531, 66 L.Ed.2d 291. Spoliation of evidence by your expert in response to a subpoena can lead to sanctions, a contempt citation and an adverse instruction to the jury. Spesco, Inc. v. General Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983); see also Adkins v. Mid- America Growers, Inc., 141 F.R.D. 466, 473 (N.D. Ill. 1992) (“In cases where evidence has been
intentionally destroyed, it may be presumed that the materials were relevant.”).
19. Give the shortest accurate answer… Remember a deposition is not a
conversation – The purpose of a discovery deposition is to learn as much as one can about the
opposing expert. When answering a question give the shortest accurate answer. Explain only
when asked. Do not ramble. Repeat after me: A deposition is not a conversation. A deposition
is not a conversation. A deposition is not a conversation!
Run through these points with your expert so he can avoids the “traps” of litigation and not end up stuck in the “sand.”
The Barrister's Toolbox 